L. Bouncing Checks Law

Atty. Jericho Del Puerto

Atty. Jericho Del Puerto

Lawyer, Author, Mentor

Frequency: ★★★★☆

“Credit” – refers to an arrangement or understanding with the bank for the payment of such check. (Section 4, B.P. 22)

1. Crime

a. Bouncing check

1st Mode (Insufficient funds) – Elements:

1) The making, drawing, and issuance of any check to apply for account or for value;

2) The knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and,

3) The subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment. (San Mateo v. People, G.R. No. 200090, 06 March 2013)

2nd Mode (Failure to keep sufficient funds) – Elements:

1) The failure to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank; and,

2) Despite having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check. (Paragraph 2, Section 1, Ibid.)

Gravamen of offense: The gravamen of the offense is the act of making and issuing a worthless check or any check that is dishonored upon its presentment for payment and putting them in circulation. The law includes all checks drawn against banks. (Resterio v. People, G.R. No. 177438, 24 September 2012)

Same; Malum prohibitum: The law was designed to prohibit and altogether eliminate the deleterious and pernicious practice of issuing checks with insufficient or no credit or funds therefor. Such practice is deemed a public nuisance, a crime against public order to be abated. The mere act of issuing a worthless check, either as a deposit, as a guarantee, or even as an evidence of a pre-existing debt or as a mode of payment is covered by B.P. 22. It is a crime classified as malum prohibitum. The law is broad enough to include, within its coverage, the making and issuing of a check by one who has no account with a bank, or where such account was already closed when the check was presented for payment. (Ibid.)

Same; Actual ownership of check or bank account – irrelevant: What Batas Pambansa Blg. 22 punished was the mere act of issuing a worthless check. The law did not look either at the actual ownership of the check or of the account against which it was made, drawn, or issued, or at the intention of the drawee, maker or issuer. Also, that the check was not intended to be deposited was really of no consequence to her incurring criminal liability under Batas Pambansa Blg. 22. (Ibid.)

Knowledge of insufficiency: To hold a person liable under B.P. Blg. 22, the prosecution must not only establish that a check was issued and that the same was subsequently dishonored, it must further be shown that accused knew at the time of the issuance of the check that he did not have sufficient funds or credit with the drawee bank for the payment of such check in full upon its presentment. Inasmuch as this element involves a state of mind of the person making, drawing or issuing the check which is difficult to prove, Section 2 of B.P. Blg. 22 creates a prima facie presumption of such knowledge. (Dico v. Court of Appeals, G.R. No. 141669, February 28, 2005)

Same; Prima facie evidence of insufficiency of funds: The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within (5) banking days after receiving notice that such check has not been paid by the drawee. (Section 2, Ibid.)

Same; Same; Elements of presumption: For this presumption to arise, the prosecution must prove the following:

1) The check is presented within ninety (90) days from the date of the check;

2) The drawer or maker of the check receives notice that such check has not been paid by the drawee; and,

3) The drawer or maker of the check fails to pay the holder of the check the amount due thereon, or make arrangements for payment in full within five (5) banking days after receiving notice that such check has not been paid by the drawee. (Dico v. Court of Appeals, supra.)

In other words, the presumption is brought into existence only after it is proved that the issuer had received a notice of dishonor and that within five days from receipt thereof, he failed to pay the amount of the check or to make arrangements for its payment. The presumption or prima facie evidence as provided in this section cannot arise, if such notice of nonpayment by the drawee bank is not sent to the maker or drawer, or if there is no proof as to when such notice was received by the drawer, since there would simply be no way of reckoning the crucial 5-day period. (Ibid.)

Notice of dishonor – indispensable: A notice of dishonor received by the maker or drawer of the check is thus indispensable before a conviction can ensue. The notice of dishonor may be sent by the offended party or the drawee bank. The notice must be in writing. A mere oral notice to pay a dishonored check will not suffice. The lack of a written notice is fatal for the prosecution. (Ibid.)

Same; Payment within 5 days extinguishes criminal liability: The requirement of notice, its sending to, and its actual receipt by, the drawer or maker of the check gives the latter the option to prevent criminal prosecution if he pays the holder of the check the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that the check has not been paid. (Ibid.)

2. Duty of Drawee

1) To cause to be written, printed, stamped, the reason for dishonor/refusal: It shall be the duty of the drawee of any check, when refusing to pay the same to the holder thereof upon presentment, to cause to be written, printed, or stamped in plain language thereon, or attached thereto, the reason for drawee’s dishonor or refusal to pay the same: Provided, That where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal. (Section 3, Ibid.)

2) To issue a notice of dishonor: The notice of dishonor required by Batas Pambansa Blg. 22 to be given to the drawer, maker or issuer of a check should be written. (Resterio v. People, G.R. No. 177438, 24 September 2012)

Same; If via registered mail – requirements: If the service of the written notice of dishonor on the maker, drawer or issuer of the dishonored check is by registered mail, the proof of service consists not only in the presentation as evidence of the registry return receipt but also of the registry receipt together with the authenticating affidavit of the person mailing the notice of dishonor. Without the authenticating affidavit, the proof of giving the notice of dishonor is insufficient unless the mailer personally testifies in court on the sending by registered mail. (Ibid.)

Prima facie evidence: In all prosecutions under B.P. 22, the introduction in evidence of any unpaid and dishonored check, having the drawee’s refusal to pay stamped or written thereon or attached thereto, with the reason therefor as aforesaid, shall be prima facie evidence of the making or issuance of said check, and the due presentment to the drawee for payment and the dishonor thereof, and that the same was properly dishonored for the reason written, stamped or attached by the drawee on such dishonored check. (Section 3, Ibid.)

State in notice re insufficiency of funds: Notwithstanding receipt of an order to stop payment, the drawee shall state in the notice that there were no sufficient funds in or credit with such bank for the payment in full of such check, if such be the fact. (Paragraph 2, Section 3, Ibid.)

3. Liability under the RPC

If  a corporation: Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act. (Paragraph 3, Section 1, Ibid.)

No prejudice to RPC Offenses: Prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code. (Section 5, Ibid.)

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